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On July 22, 2021, Jennifer Abruzzo was sworn in as the General Counsel for the National Labor Relations Board (“NLRB”) for a four-year term. In the more than nine months that have followed, the new General Counsel has urged the NLRB to reverse several existing precedents in ways that would dramatically enhance the ability of unions to organize employees.
Shortly after her appointment as General Counsel, Ms. Abruzzo signaled the scope and nature of her agenda. Starting in August 2021, she issued a series of memoranda that outlined the voluminous issues and concerns she intended to address. Overwhelmingly, the General Counsel’s writings and actions have favored unions and employees. While the number and significance of her proposed changes are quite dramatic, the General Counsel’s anti-employer agenda is not surprising. She was nominated by President Biden, who has announced that he intends to be the most pro-union president in the history of the country, she had served in various positions with the NLRB for more than 20 years, and her last employment before assuming the General Counsel’s job was as the Special Counsel for Strategic Initiatives for the Communications Workers of America.[1]
The three majority members of the Board are likely to lend a sympathetic ear to the General Counsel’s arguments. Two of the three were appointed by President Biden in August of 2021. Both had previously served as counsel for unions. The Chairperson was appointed to the Board by President Obama in 2014, and in January of 2021, President Biden made her the Chairperson of the Board. The Chairperson previously served in positions that supported two Democratic senators.
As an example of the General Counsel’s pro-union stance, she has argued in her brief to the NLRB in a pending case, Cemex Construction Materials Pacific, LLC, 28-RC-232059, that five different prior NLRB holdings should be overruled. Probably the most significant NLRB doctrine that the General Counsel seeks to overturn in this case involves union recognition based on union authorization cards. For decades, employers have routinely and lawfully rejected requests from union representatives for recognition based upon authorization cards supposedly signed by a majority of the employees the union sought to represent. Instead, employers usually simply replied to such requests that they preferred to rely upon the results of a secret ballot election conducted by the NLRB. The General Counsel now argues that under such circumstances, an employer should be ordered to bargain with a union unless the employer can establish that it rejected the union’s request based on a good faith doubt that the union represented a majority of the employees in the proposed bargaining unit. The General Counsel asserts that a 1949 NLRB decision in which this theory was espoused, Joy Silk Mills, Inc., 85 NLRB 1263 (1949), provides superior logic and reasoning and would reduce unlawful actions by employers. She also believes that the commission of unfair labor practices subsequent to employer’s rejection of card-check recognition can be relied upon as support for the conclusion that the employer lacked good faith for its doubt of majority status at the time of its rejection of a union’s request for recognition. If the NLRB and the courts adopt this ruling, employers will face very difficult choices. If they examine authorization cards and those cards appear to have been signed by a majority of the employees in an appropriate unit, the employer will be bound by that knowledge and will not be able to seek an election.
The General Counsel has also argued in Cemex that the NLRB should overrule long-established precedent and hold that mandatory employee meetings at which employers seek to persuade employees not to support unions violate the National Labor Relations Act. Such meetings have long been a staple of employer campaigns in response to union campaigns. The General Counsel argues that such meetings are unlawful because they inherently involve a threat of reprisal against employees for exercising their protected right to refrain from listening to such speech. The General Counsel also contends that an employer violates the law when a manager or supervisor “corners” an employee who is working at his job and thus is compelled to listen to the anti-union views of the manager or supervisor. According to the General Counsel, employers may avoid liability if they assure employees that attending mandatory meetings or suffering such “cornering” is voluntary and that non-participation will not result in any reprisals.
In Cemex and another case the General Counsel has also argued that employees who have been discharged unlawfully under the Act should be entitled not only to the traditional remedies of reinstatement and bargaining, but also should be made whole for all losses they have suffered, just as they would under other statutes. More specifically, according to the General Counsel, unlawfully terminated employees should be able to recover “expenses, penalties, legal fees, late fees” and “damages for harm such as emotional distress or injury to character, professional standing or reputation; as well as remedies that are tailored to addressing the public harm and chilling effect, or potential thereof, of the unfair labor practice at issue.”
Elsewhere, the General Counsel has asserted that more publication than the mere posting of notices on a bulletin board regarding employer violations of the Act is needed in order to remedy employer violations. The General Counsel also contends that employers should be required to pay for costs incurred by a union in connection with a re-run of an election that was necessary because of an employer’s misconduct.
Finally, in February of this year, the General Counsel launched a “new injunction initiative” that is aimed at promptly addressing and stopping the actions of employers who threaten or coerce employees during organizing campaigns. In one of her earlier memoranda, the General Counsel wrote that such injunctions are one of the most important tools available for the enforcement of the Act, and that she intended to “aggressively” seek such relief where necessary. She pointed specifically to allegedly unlawful discharges that occur during union organization campaigns as constituting the types of violations that should result in injunctive relief.
The General Counsel’s emphasis of such injunctive relief is an unspoken acknowledgement that pursuit by the NLRB of its normal remedies under the Act can take months if not years to reach conclusions, long after an election has been conducted. On the other hand, successful pursuit by the NLRB of injunctive relief from a federal district court can result in reinstatement of discharged employees and the redressing of other alleged actions in a matter of days, versus the months if not years it can take for the NLRB to obtain “normal” remedies under the Act. Thus, seeking an injunction can have a powerful effect upon the outcome of a pending election.
[1] Interestingly, in the first six months of the NLRB’s 2022 fiscal year, the number of union representation petitions filed with the NLRB have increased by 57% -- from 748 during the Board’s 2021 fiscal year to 1,174 during the period from October 1, 2021 to March 31, 2022.